STATE OF NEW JERSEY v. SAMUEL LEWIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3270-04T43270-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMUEL LEWIS,

Defendant-Appellant.

_________________________________________

 

Submitted June 1, 2006 - Decided July 19, 2006

Before Judges Conley, Winkelstein and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-05-1696.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

James P. Lynch, Acting Camden County Prosecutor, attorney for respondent (Laurie A. Corson, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Samuel Lewis appeals his conviction for one count of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and two counts of second-degree child endangerment, N.J.S.A. 2C:24-4a, arising out of an attack upon the two-year-old daughter of his live-in girlfriend. Defendant was sentenced to three seven-year concurrent terms of imprisonment with a No Early Release Act (NERA) parole disqualifier. N.J.S.A. 2C:43-7.2. We affirm.

The following evidence was presented at trial. S.B., the mother of D.B., testified that on Thursday, October 10, 2002, she left D.B. in defendant's care while she attended an evening college class. Her class began at 6:00 p.m. When she returned home between 7:30 p.m. and 8:00 p.m. that evening, the house was smoky because defendant had burned their dinner. Defendant told S.B. he tried to feed D.B., but D.B. was throwing up. D.B. was in S.B.'s bed when S.B. found her "gasping for breath. Breathing really, really hard, laying under the covers. And I went to her and she was just really gasping for breath and moaning and groaning. You could tell she was in a lot of pain." D.B. vomited two or three times in her presence. The vomit was "real dark brown" in color. At some point, while she was still in the bedroom, S.B. had a conversation with D.B.:

What happened was, I said, what happened? And I asked the question. And I said, what happened to you? Who did this to you? She said Sam. I said Sam what? Because at this time I'm like, I'm in shock. What do you mean Sam? Sam what? Did it or you want Sam? She said she wanted Sam.

I said Sam, [D.B.] says she wants you. He hesitated for a little bit. Then he came up and he didn't show any reaction. They hugged each other and whatever and that was it.

Initially believing D.B. had food poisoning, S.B. immediately asked defendant to take her and D.B. to the hospital. At first, defendant said "no" because he had to work the next morning and did not want to stay at the hospital all night. Eventually, however, he took them to the hospital.

When hospital personnel removed D.B.'s clothing, they discovered bruises on her abdomen. S.B. had not seen these bruises the night before when she bathed D.B. She testified that during this time, defendant was "quiet." Because of the seriousness of D.B.'s injuries, she was transported to Cooper Hospital in Camden. Defendant did not accompany them.

At Cooper Hospital, S.B. was told D.B. might not survive her injuries. She called defendant to tell him about D.B.'s condition. S.B. testified defendant showed no emotion during that conversation, that he was very "[c]alm, like he was concerned, and he was calm the whole time."

Her next encounter with defendant was on Saturday morning, October 12, 2002, after she returned home from Cooper to shower and straighten up before going back to the hospital. She had asked her neighbor to watch her front door as she showered because she feared defendant would enter. Defendant banged on the door, stating "[I] want [my] F'ing clothes. [I] want [my] F'ing stuff. Give it to me now." The police were called to the scene, and defendant was arrested for D.B.'s assault.

Dr. Monk, who treated D.B. at Cooper Hospital, testified that D.B. required surgery as a result of her injuries. A CT scan revealed injuries to D.B.'s liver, pancreas, and bowel. After making the initial incision, he discovered a tremendous amount of inflammatory fluid and blood in her abdominal cavity as a result of bacteria from her digestive tract leaking into the abdominal cavity. Once the fluid and blood were removed, he was able to mobilize the small bowel and large bowel, and he noticed that an area where the small bowel hooks up to the large bowel had lost its blood supply. This area had to be removed. Additionally, he found a hole in D.B.'s large bowel, as well as marked bruising and tearing to a portion of the bowel wall of the duodenum, which is the first part of the small bowel, and extensive bruising to the second, third, and fourth portions of the duodenum. There was also a contusion to the pancreas.

After the first surgery, D.B. developed a complication called abdominal compartment syndrome, meaning that all of her organs were swollen and squeezed together so tightly that the blood flow to the organs was being compromised. Thus, a second surgery was required, during which the doctors opened up the incision from the first surgery to give her organs additional room. A sterilized intravenous bag was placed "over all those abdominal contents pushed up out of the belly" and the bag was sewn onto the skin to keep it in place. After the swelling had gone down, a third surgery was performed to close up her stomach. Despite what Dr. Monk deemed to be a rapid recovery, D.B. was chemically paralyzed for approximately five to six days and was on a ventilator for a few weeks.

Dr. Monk opined that D.B.'s injuries were caused by "blunt trauma," meaning some type of blow to the abdominal area, which he described as having been "very sharp, very fast, very forceful." He compared the injury to that of injuries he had seen resulting from high-speed car crashes with an infant sitting in an old booster seat.

Dr. Marita Lind, who provided a Division of Youth and Family Services (DYFS) consultation, concluded that within a reasonable degree of medical certainty, D.B.'s injuries were life-threatening.

Carol Lipscomb, whose townhouse shares a wall with S.B.'s, testified that she was in her bed when she heard about four or five "booming" noises coming from S.B.'s home on the evening of October 10, 2002, between 6:00 p.m. and 7:00 p.m., or maybe "a little later." She further described, "[i]t wasn't like a little noise. It was like boom. Like a thud, you know?" Thinking that S.B. and defendant were fighting, Lipscomb pulled up her window blind and noticed S.B.'s car was not parked in front of her house. She then realized S.B. was not at home.

Investigator Eric Wren of the Camden County Prosecutor's Office testified about his interview with defendant. The interview took place on Friday, October 11, 2002, beginning at "approximately 4:20 p.m." and ending at "approximately 5:30." Wren testified that defendant was "very vague about the details of [the] two hours" he was alone with D.B. while her mother was at college. Wren stated defendant said that D.B. had vomited two times while in his care. Defendant's explanation began to change as the interview progressed. Wren testified when he told defendant he did not believe him, defendant promptly asked for a lawyer. The interview ended and Wren drove defendant back to the hospital.

There was disputed testimony about D.B.'s condition before S.B left her in defendant's care. Defendant testified that D.B. was not feeling well before S.B. left for her college classes that evening. S.B., however, disputed this testimony. She indicated that D.B. had been in good health the day of the incident. Earlier on the day of her attack, D.B. was at the Goddard School, where she was a student. Jacqueline Barnes, Assistant Director of the school at that time, testified D.B. was in good health on that day and was walking around and playing with the other children. She indicated D.B. was receiving special attention because she was about to transition to a different classroom and was being monitored to see her reaction to the change. Stephanie McClelland Marshall, the head teacher at the Goddard School, testified she had D.B. in her class on the date of the incident. She testified that D.B.'s behavior in class that day was fine and D.B. was playing with the other kids and walking around. She did note, however, D.B. was generally withdrawn and had a tendency to whine and whimper. She recalled she also noticed D.B. was walking slowly that day.

Defendant took the stand in his defense. He testified he came home from work at approximately 5:00 p.m. on October 10, 2002. D.B. and S.B. were already home. He noticed that D.B. was lethargic and asked S.B. what was wrong with her. S.B. "shrugged her shoulders and told me she didn't know." S.B. left for school between 5:15 p.m. and 5:20 p.m. Defendant and D.B. were downstairs by themselves. Approximately twenty minutes after S.B. left for school, defendant gave D.B. some Gatorade and she vomited on the floor. Defendant wiped the vomit from D.B.'s shirt and put her on the couch so that she would be more comfortable. Approximately five to ten minutes later, D.B. vomited again. Defendant changed D.B.'s shirt and placed her back on the floor. D.B. vomited again. Defendant believed that since D.B. was unresponsive, she probably did not feel well. He took D.B. upstairs and put her in S.B.'s bed. Defendant returned downstairs, did laundry, and started to cook dinner. A small grease fire erupted on the stove.

S.B. returned home between 7:30 p.m. and 7:45 p.m. S.B. checked on D.B., took a shower, and came downstairs to have dinner with him. After checking on D.B. again, S.B told him she wanted to take D.B. to the hospital because she was moaning. Defendant denied he was initially resistant to going to the hospital. Instead, he stated he was surprised by what S.B. told him about D.B. because he had not heard D.B. moaning. He also indicated he had an evaluation at work the next morning and didn't want to remain at the hospital all night. They arrived at the hospital between 9:00 p.m. and 9:15 p.m. After waiting for a period of time, he and S.B. agreed he would return home and she would contact him with updates. He was unsure of what time he returned to the house. He spoke with S.B. two times before going to work the next morning, but he did not learn of the seriousness of D.B.'s condition until lunchtime when he received a phone call from his mother, who told him D.B. had internal injuries and that investigators wanted to speak with everyone. He said that within a half-hour of his arrival at the hospital, the investigators came to speak with him. Defendant stated he went to the prosecutor's office to speak with the investigators, who drew up a timeline. He testified he did not see the timeline until after his arrest, and the information on the timeline was not what he provided to the investigators.

Defendant denied responsibility for D.B.'s injuries. He testified he attempted to retrieve his belongings from S.B.'s house the following morning, but S.B. called the police and he was arrested. He characterized his knock on S.B.'s door as a "soft knock," which was corroborated by his friend, Aaron Kirkland, who testified he accompanied defendant to S.B.'s house that Saturday morning to help collect defendant's belongings. Defendant called 911 for assistance in getting his belongings and was told that an officer would come to the house.

On cross-examination, defendant indicated he was not frustrated or angry that he was unable to study for his evaluation because D.B. was sick, saying D.B. "was my priority. I was her guardian that day. Anything else that goes on she's first." He acknowledged that he had a very calm temper.

Bishop Robert Nicholson testified on behalf of defendant. He testified defendant had a good reputation for truthfulness. Cheryl Sanders, defendant's ex-girlfriend, testified on behalf of defendant as well. She stated that defendant always treated her children and her nephew "very well." When asked to give her opinion regarding defendant's truthfulness and peacefulness, Sanders testified defendant has "always been truthful with me and my family" and he was "always peaceful."

Based on defendant's testimony that he had a calm temper, the prosecution sought to introduce rebuttal evidence about defendant's bad temper. The trial court held a N.J.R.E. 104 hearing, during which the court heard from Carol Lipscomb, the neighbor who reported she had witnessed multiple instances of defendant's bad temper.

Following the hearing, the court ruled the testimony was admissible. In her rebuttal testimony, Lipscomb testified she saw defendant the morning he was arrested. Defendant was "bamming on [S.B.'s] door" and cursing loudly. S.B. called her while defendant was banging on the door and Lipscomb told her to call the police if she was afraid. Lipscomb indicated she had seen defendant upset on approximately five or six other occasions, usually cursing on the cell phone while walking back and forth on the sidewalk. She indicated that in one instance, defendant was angry because he had to mow S.B.'s lawn and he said, "I'm not cutting no mother F'ing grass." During another instance, Lipscomb testified defendant was angry because he had to take care of S.B.'s other child, a four-year-old boy, after he had run away from school. Defendant yelled at S.B. and the police, saying, "he's not my F'ing son. I'm not -- I shouldn't be responsible for him." Lipscomb admitted that when questioned in connection with the charges against defendant, she never revealed these earlier incidents, which at trial she claimed to have witnessed.

On June 17, 2004, defendant was convicted on all charges. He was sentenced on December 10, 2004. Pursuant to N.J.S.A. 2C:44-1a, the trial court found the following aggravating factors applicable: (1) the nature and circumstances of the offense and the role of the actor therein, including whether or not the crime was committed in an especially heinous, cruel or depraved manner (N.J.S.A. 2C:44-1a(1)); (2) the gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to . . . extreme youth . . . or incapable of exercising normal physical or mental power of resistance (N.J.S.A. 2C:44-1a(2)); (3) the risk that the defendant will commit another offense (N.J.S.A. 2C:44-1a(3)); and (4) the need for deterring the defendant and others from violating the law (N.J.S.A. 2C:44-1a(9)). The court found as a mitigating factor, defendant had no history of prior delinquency or criminal activity or had led a law-abiding life for a substantial period of time before the commission of the present offense (N.J.S.A. 44:1b(7)). The trial court imposed a seven-year term with a NERA parole disqualifier on Count One and two seven-year terms on Counts Two and Three, to be served concurrently with Count One. The necessary fines and penalties were also imposed.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE VERBAL STATEMENTS MADE BY THE DEFENDANT TO THE AUTHORITIES SINCE THE DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION AND WAS NOT GIVEN HIS MIRANDA WARNINGS.

POINT II

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S QUESTIONING OF AN INVESTIGATOR WHICH ELICITED THE FACT THAT THE INTERVIEW WITH THE DEFENDANT WAS TERMINATED WHEN HE INVOKED HIS RIGHT TO COUNSEL, THEREBY INFRINGING UPON THE DEFENDANT'S FIFTH AMENDMENT RIGHT TO REMAIN SILENT AND HIS SIXTH AMENDMENT RIGHT TO COUNSEL. (NOT RAISED BELOW).

POINT III

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT TESTIMONY FROM CAROL LIPSCOMB INFERENTIALLY CONNECTING THE DEFENDANT WITH PRIOR ASSAULTIVE BEHAVIOR (PARTIALLY RAISED BELOW).

POINT IV

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT REBUTTAL TESTIMONY DESIGNED TO PORTRAY THE DEFENDANT AS HAVING A TEMPER WHO WAS PRONE TO OUTBURSTS.

POINT V

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

POINT VI

ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.

We have carefully considered defendant's arguments and conclude that none warrant reversal of his conviction and sentence. With the exception of defendant's arguments concerning Points II, III, and IV, his remaining arguments are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).

I.

During the prosecutor's direct examination, Investigator Wren testified that towards the end of his interview with defendant, he told defendant he believed he was lying and that he was the "one that hurt [D.B.]." Defendant then told Wren he wanted a lawyer and Wren "immediately stopped questioning him." Although defense counsel did not object to this line of questioning, the prosecutor requested a limiting instruction as to the jury's consideration of this testimony:

I know the defense hasn't asked for a limiting instruction in that regard. I know this is appropriate testimony for the limited reason of explaining how and why the interview stopped. I don't know if the Court wishes at this juncture in the trial to give a limiting instruction to avoid any possibility of the jury considering that for improper purpose. I'm sure you would in your charge at the end of the case, but I wanted to bring it up at this juncture as well.

MS. SOAST: Judge, I was going to ask for it just in the charge.

The court, in its final charge to the jury, specifically addressed this testimony:

Ladies and gentlemen, you have heard that the defendant . . . spoke with Investigators Wren and Saunders about [D.B.'s] injuries and how they may have occurred. You've also heard that defendant during this interview invoked his right to counsel. The right to counsel is a fundamental right afforded to each citizen in this state and in the United States. You are not to draw any negative inference from the defendant's exercise of his constitutional rights to counsel. That would be inappropriate and a violation of your sworn responsibility.

Defendant argues that despite this limiting instruction, the testimony elicited had the practical effect of suggesting to the jury that defendant acknowledged his guilt by virtue of his request for counsel after Wren's accusations. Because there was no objection to this aspect of Wren's testimony, nor any objection to the court's limiting instruction, we review this contention under the plain error standard by determining whether Wren's testimony was "clearly capable of producing an unjust result." R. 2:10-2.

The privilege against self-incrimination in this State, while not embedded in the constitution, has its roots in the common law and is now codified by statute and the Rules of Evidence. N.J.S.A. 2A:84A-19; N.J.R.E. 503. This right applies whether the questioning takes place in a custodial or non-custodial setting. State v. Deatore, 70 N.J. 100, 114 (1976). Therefore, "[a] suspect who begins to speak to the police while in custody, during interrogation, or 'at or near' the time of his arrest does not waive his right against self-incrimination" when he requests counsel during the interrogation. State v. Muhammad, 182 N.J. 551, 568 (2005). Nor may the prosecution employ any trial tactic designed to suggest to the jury that a defendant's guilt may be inferred from the exercise of any right embodied in the privilege against self-incrimination. State v. Hyde, 292 N.J. Super. 159, 164 (App. Div. 1996).

Nonetheless, not every reference by a prosecutor to the exercise of a defendant's constitutional right to counsel, as embodied in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), will constitute undue prejudice sufficient to warrant reversal of a conviction. See State v. Tilghman, 345 N.J. Super. 571, 577 (App. Div. 2001). It is only reference to a defendant's assertion of a constitutional right to remain silent or to counsel designed to establish or infer consciousness of guilt that constitutes reversible error. Ibid. Here, defendant voluntarily accompanied Wren to headquarters for questioning. He provided police with specific details related to their investigation of the circumstances surrounding D.B.'s injuries; and, in particular, the time during which D.B. was under his care. Seventy-five minutes into the interview, defendant indicated he wanted a lawyer. Wren terminated the interview because he was required to do so. Thus, Wren's testimony in this regard "'was not elicited to draw unfavorable inference to the fact that defendant decided to [request counsel] at that point; rather, the testimony shows the interrogation had a logical ending.'" State v. Feaster, 156 N.J. 1, 75-76 (1998) (quoting State v. Ruscingno, 217 N.J. Super. 467, 471 (App. Div.), certif. denied, 108 N.J. 210 (1987)).

Further, the trial court's limiting instruction was more than sufficient to dispel any consideration that his request for counsel bore upon his guilt. See State v. Daniels, 182 N.J. 80, 102 (2004). Additionally, the evidence against the defendant was nearly insurmountable. Defendant was solely responsible for D.B. for a two-hour period before her injuries were discovered. Witnesses from D.B.'s school testified D.B.'s condition was fine earlier in the day. A neighbor heard a booming noise from the apartment at the time D.B. and defendant were alone. Thus, Wren's statement, by itself, was not "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

II.

Defendant argues the trial court erred in allowing Carol Lipscomb's testimony about noises she heard between 6:00 p.m. and 7:00 p.m. on the evening D.B.'s injuries were discovered. Defense counsel did not object when the prosecution elicited this testimony.

Defendant argues this evidence should have been excluded because it was not relevant. Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Generally, all relevant evidence is admissible. N.J.R.E. 402. Such evidence may, however, be excluded if its probative value is substantially outweighed by the risk of undue prejudice. N.J.R.E. 403. Only evidence that is unduly prejudicial justifies exclusion, as "[a]ll damaging evidence is prejudicial . . . ." State v. Scherzer, 301 N.J. Super. 363, 469 (App. Div.), certif. denied, 151 N.J. 466 (1997). The decision to admit evidence deemed relevant is committed to the sound discretion of the trial court. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). That decision will not be overturned on appeal unless the admissibility of such evidence "'was so wide of the mark that a manifest denial of justice resulted.'" Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

Lipscomb's testimony that she heard "booming" noises coming from S.B.'s condominium, which she attributed to a fight between S.B. and defendant, was not irrelevant. First, the evidence was relevant because it placed in context the kind of booming noise Lipscomb believed she heard. Second, the evidence was relevant because of the time period when Lipscomb heard the noise, which was when D.B. was still alone in the apartment with defendant. Without this testimony, beyond D.B.'s vomiting and the small grease fire, the jury could have reasonably concluded the evening was otherwise uneventful. The booming noise heard by Lipscomb is inconsistent with the defendant's characterization of the evening's events. In the absence of direct evidence of defendant's assault, such as an eyewitness, Lipscomb's testimony provided circumstantial evidence of a striking event occurring in the home while D.B. was in defendant's care. See State v. Swint, 328 N.J. Super. 236, 252-254 (App. Div.), certif. denied, 165 N.J. 492 (2000). Thus, although Lipscomb's testimony that she first thought defendant and S.B. were fighting may have suggested the couple had fought in the past, the probative value of this evidence far outweighed any prejudicial effect upon defendant. See State v. Stevens, 115 N.J. 289, 308 (1989) ("'That evidence is shrouded with unsavory implications is no reason for exclusion when it is a significant part of the proof.'") (quoting State v. West, 29 N.J. 327, 335 (1959)).

III.

Defendant argues the admission of rebuttal testimony about his alleged bad temper was improper because he did not sufficiently place his calm character at issue.

During cross-examination, the following dialogue occurred:

Q. Sounds like it's very difficult to get you upset, sir. Is that true?

A. Well, I try to be -- have a calm temper. I mean, I'm like everyone else. I can get upset.

. . . .

Q. Your testimony's you don't have a bad temper, I assume?

A. No, I don't.

Q. Have a very calm temper?

A. Yes.

Following this testimony, the prosecutor moved to rebut this testimony through Carol Lipscomb, arguing her testimony was relevant to defendant's credibility. The trial court conducted a hearing outside the presence of the jury, during which Lipscomb recalled defendant's behavior that she had previously witnessed. At the conclusion of the hearing, the judge found:

As I said yesterday, the reason I wanted to conduct this [N.J.R.E.] 104 hearing is because I felt that this subject area is a matter of degree.

From what I just heard from [the rebuttal witness], if the jury believes what she has to say, and that's certainly up to the jury, what she had indicated to me is somewhat extreme conduct and certainly not the type of conduct that [defendant] commented upon that he gets upset like the average person does, okay?

What I just heard doesn't sound, from my perspective, like conduct from the average person in the community and how they react to things. Therefore, I think the degree is moved beyond the average person. I will permit it. It will be up to the jury to decide whether they choose to believe it.

Lipscomb described an incident during which defendant was "raving" when asked to cut the grass, saying "I'm not cutting no mother F'ing grass." During another incident, after S.B.'s four-year-old son had run away, defendant yelled to Lipscomb and a police officer that he was not responsible because "he's not my F'ing son." Lipscomb also relayed five or six instances during which she saw defendant on the sidewalk by the townhouse "cussing and walking."

The prosecutor's proffer to the court was:

Rather than bad character, I believe this is fundamentally credibility evidence. Defendant has said he does not have a temper, doesn't raise his voice, yell, that sort of thing. And the next door neighbor will testify contrary to that. She has, in fact, witnessed him do exactly that.

Despite the prosecutor's proffer that this testimony was "credibility evidence," the testimony also related to a character trait of defendant, his temper. It is well settled that evidence of a witness' character traits, other than for truthfulness or untruthfulness, may not be used to affect credibility. State v. Guenther, 181 N.J. 129, 139-40 (2004). Although the evidence should not have been admitted as bearing upon credibility, we are satisfied the error was harmless because while it impacted upon defendant's character, it was the defendant who placed his character trait for a clam temper in evidence when he volunteered that he had a very calm temper. See State v. R.B., 183 N.J. 308, 330 (2005).

While character evidence is generally inadmissible, "pertinent" character traits of the defendant are admissible if offered by the accused or by the prosecution to rebut the accused's assertion of his or her pertinent good character traits. N.J.R.E. 404(a)(1). A person charged with a criminal offense has the right to present character evidence to raise reasonable doubt as to whether he committed the offense. State ex rel. V.M., 363 N.J. Super. 529, 537 (App. Div. 2003). Essential to this rule is that a defendant must put in evidence of his good character before the State may introduce contradictory testimony. State v. Linder, 170 N.J. Super. 548, 557-58 (App. Div. 1979). The sequence is designed to insure a defendant's right to a fair trial. See Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 404 (2006).

Here, in an apparent effort to establish a motive for the offense, it was proper for the prosecution to question defendant during cross-examination about whether he was frustrated by D.B.'s illness. Defendant was the one who stated he had a "calm temper," thus highlighting his temperament and opening the door to rebuttal testimony about his temperament. State v. Baluch, 341 N.J. Super. 141, 188 (App. Div.), certif. denied, 170 N.J. 89 (2001). We agree, however, that Lipscomb's testimony about five or six instances during which she witnessed defendant cursing on his cell phone as he walked on the sidewalk should not have been admitted. It is unclear, without more, how this testimony related to defendant's temper. Nonetheless, we do not find that the admission of this evidence was "clearly capable of producing an unjust result." R. 2:10-2.

IV.

Defendant argues the seven-year sentence imposed was manifestly excessive because the court considered aggravating factors that were not applicable to the specific circumstances of this case. He contends the court should not have considered aggravating factor number one, "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner[,]" N.J.S.A. 2C:44-1a(1), because there was nothing to distinguish the underlying facts from the overwhelming majority of other second-degree aggravated assault cases. He also contests the applicability of aggravating factor number three, "[t]he risk that the defendant will commit another offense[,]" N.J.S.A. 2C:44-1a(3), in light of his one prior disorderly persons offense of simple assault/shoplifting in 1997. Finally, defendant argues the trial court should have considered, as additional mitigating factors, the fact that his conduct was the result of circumstances unlikely to recur and that his character and attitude make it unlikely he would re-offend upon his release from incarceration. N.J.S.A. 2C:44-1b(8) and (9).

In his statement of reasons prior to sentencing defendant, the trial court found:

And I take seriously into consideration everything that has been submitted to the Court. As I said earlier, I received a letter from Miss Martina R. Baker-Jackson; I reviewed it. I've heard from members of Mr. Lewis' family and Mr. Lewis himself.

This is, as I said earlier, a sad day. Mr. Lewis, he has one prior contact with the system that we've all heard comment on already. However, that was not a Superior Court level conviction, it was a Municipal Court matter, simple assault as I recall.

So, therefore he does not have a prior criminal record. He has a matter that was handled at the Municipal Court.

Even the comments of the mother of this child basically lend support to the fact that although he apparently from the testimony that was given has a temper, other than this one occasion which resulted in the Municipal Court matter, he's pretty much been a law-abiding citizen, a responsible person. He is an intelligent person. He comes from what I can see, a very nice family.

Mr. Gilfert mentions the phrase in his -- one of his submissions that Mr. Lewis "lost it" on this occasion. I agree with that. I don't know what actually happened. Nobody really knows what actually happened, but Mr. Lewis.

Obviously, this little child was too young to really indicate with any degree of ability given her age what took place on this day.

What we do know, and that's what I find most distracting, is that although the child apparently maybe had some minor little things that were bothering her on the day of this incident, the child is left in the care of Mr. Lewis and the child was essentially fine. Maybe some very minor things as I've already said were bothering her, but certainly nothing of any significance.

And then the mother returns from school several hours later and now the child has very, very extensive significant internal injuries which just about cost her her life.

. . . .

This little girl almost died. She was operated on three times. The doctor only gave her a 50/50 chance of survival in the first operation. Apparently the odds were even less on the second operation. She was operated on a total of three times in a hospital and a rehab for a total of seven weeks and you don't have a clue as to what happened?

. . . .

I reviewed the Presentence Report carefully and it's terrible what happened here. And Mr. Lewis offers no explanation. And then he compounds the problem by pleading ignorant when the doctors are trying to figure out what's going on with this little girl.

. . . .

I don't know what happened, as I said already. The only one who really knows was Mr. Lewis. But, this little girl suffered a significant blow or blows either from a fist or a foot, something that caused these injuries.

And once again, I find it absolutely mind boggling that somebody says, who is responsible for her during that period of time, "I don't know what happened; it's a mystery to me".

Well, it wasn't a mystery to the jury who heard everything. And this little girl fortunately survived. But, she's going to carry the effects of the injuries she sustained to her grave with significant scarring and the other things that are associated with the injuries, the adhesions. That's terrible what happened here.

By the same token, as I've already said, Mr. Lewis for the most part seems to have led a responsible life. He's now 31 years old. He has very minor contact with the system. People speak well of him. He has a lot going for him.

Why this happened, I don't know. We will never know unless Mr. Lewis decides to tell the truth, which I think he has avoided telling to this date.

I also considered the aggravating and mitigating factors. I find Aggravating Factor Number One in regard to Count One and that reads: The nature and circumstances of the offense and the role of the actor therein, including whether or not the crime was committed in an especially heinous, cruel or depraved manner;

Number Two under the aggravating I find relates to Counts One and Three, the main emphasis here being that the child was two years of age when this happened and once again was totally incapable of defending herself from what took place;

I find Number Three in regard to all counts. I don't give that much weight because of Mr. Lewis essentially being law abiding prior to this incident;

I find Number Nine and I find that is essentially universal as I've said many times in this court. That applies to all counts.

Mitigating Factors. The only mitigating factor I can find is Number Seven, which essentially relates to essentially no prior criminal history and being law-abiding.

I do not have enough information for me to draw the ability to find Mitigating Factors Eight and Nine. Although, I certainly understand why Miss Soast argued those factors.

I find that the aggravating factors substantially outweigh the mitigating factors.

. . . .

I understand there is a good argument for consecutive sentencing in this case. We do have a continuum here. But, we also have a somewhat fairly clear separation that took place in the blow that caused this child these horrible injuries and then the actions of the defendant after that claiming ignorance of anything.

And therefore, a significant delay in the doctors being knowledgeable as to how to go about treating this little girl.

But, everything considered and I mean everything when I say that, I am not going to impose consecutive sentences.

A sentencing judge must employ proper legal principles and the final sentence must be based on "competent, reasonably credible evidence." State v. C.H., 264 N.J. Super. 112, 139 (App. Div.) (quoting State v. Roth, 95 N.J. 334, 363-65 (1984)), certif. denied, 134 N.J. 479 (1993). To prove that a fair balancing occurred, the trial court must describe the process it undertook to arrive at the final sentence. State v. Boyer, 221 N.J. Super. 387, 405 (App. Div. 1987) (citing State v. Kruse, 105 N.J. 354, 358-60 (1987)), certif. denied, 110 N.J. 299 (1988). The judge in this case presided over the trial, reviewed the record, and listed the aggravating and mitigating factors as well as the reasons why he found those factors determinative in his final sentencing decision. If a sentencing court properly identifies and balances the factors and there is substantial evidence in the record to support its findings, it is not our task, as a reviewing court, to second guess the trial court's findings. State v. Jabbour, 118 N.J. 1, 6 (1990); State v. O'Donnell, 117 N.J. 210, 216 (1989). We also observe, despite finding that the aggravating factors outweighed the mitigating factors, the trial court imposed only the presumptive term on each offense, noting that "the Supreme Court of New Jersey has not weighed in yet on this specific subject area." This is indicative of the trial court's careful analysis and should not be questioned by this court. See Ibid. Finally, the court imposed concurrent terms on the three counts, despite the prosecution's strong argument to the contrary. That decision, and the imposition of a total seven-year prison term and NERA parole disqualifier, does not shock this court's judicial conscience. See Roth, supra, 95 N.J. at 364.

Subsequent to the imposition of defendant's sentence, the Court decided State v. Natale, 184 N.J. 458 (2005), where it held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Id. at 466. Natale addressed concerns raised about the constitutionality of presumptive sentences after the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In Blakely, the Court held, "'[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" Id. at 301, 124 S. Ct. at 2536, 159 L. Ed. 2d at 412 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000)). The Natale court remedied the unconstitutionality of New Jersey's sentencing scheme by eliminating presumptive terms from the sentencing process entirely. Natale, supra, 184 N.J. at 487. The Court determined that the elimination of presumptive terms applies "retroactively to cases in the pipeline." Id. at 494. Since this appeal was pending when Natale was decided, it is subject to Natale's dictates. See Ibid. (defining pipeline retroactivity as applying the ruling to "defendants with cases on direct appeal as of the date of [the] decision and to those defendants who raised Blakely claims at trial or on direct appeal"). Defendant was sentenced to three seven-year terms for second-degree offenses. The mid-range term for a second-degree offense is seven years. N.J.S.A. 2C:44-1f(1)(c). Because defendant was not sentenced above the mid-range term, it is not necessary to remand this case for resentencing. Natale, supra, 184 N.J. at 487. Furthermore, defendant's parole disqualifier is not violative of Blakely or State v. Abdullah, 184 N.J. 497, 511-12 (2005).

Affirmed.

 

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30

A-3270-04T4

RECORD IMPOUNDED

July 19, 2006